SPEECH  OF  MR.  BARNARD,  OF  NEW  10RK, 

ON  THE 

Report  and  Resolutions  of  the  Committee  on  Elections,  relative  to  the  elections 
by  General  Ticket  in  the  four  recusant  States  of  New  Hampshire, 
Georgia,  Mississippi,  and  Missouri. 


DELIVERED  IN  TIIE  HOUSE  OF  REPRESENTATIVES  OF  THE  U.  S.,  FEB.  13,  1844. 


{The  Report  of  the  Committee  on  Elections,  having  the  subject  in  charge  by  order  of  the  House 

of  Representatives,  presents  a  labored  argument,  the  conclusion  of  which  was  summed  up  in 

the  following  resolution : 

“  Resolved,  That  the  second  section  of  ‘  An  act  for  the  apportionment  of  Representatives 
among  the  several  States  according  to  the  Sixth  Census,’  approved  June  25,  1842,  is  not  a  law 
in  pursuance  of  the  Constitution  of  the  United  States,  and  valid,  operative,  and  binding  upon 
the  States.” 

The  debate  was  begun  on  Tuesday,  the  ninth  day  of  February,  and  was  continued  daily,  to 
the  exclusion  of  all  other  business,  for  one  week,  having  been  closed  by  Mr.  Douglass,  the 
author  of  the  report,  on  Wednesday  morning,  the  14th  of  February.  Mr.  Barnard  spoke  at  a 
late  hour  on  the  preceding  evening,  and  was  the  last  who  addressed  the  House  in  opposition  to 
the  report  and  resolution.  About  thirty  gentlemen  had  been  heard  on  the  subject — all  under 
the  stringent  and  dwarfing  effect  of  the  one  hour  rule.  Before  the  previous  question  was  moved 
the  form  of  the  question  was  changed,  so  as  to  make  the  majority  sustaining  the  report  declare 
£hat  the  several  persons  (naming  them)  occupying  seats  from  New  Hampshire,  Georgia,  Mis¬ 
sissippi,  and  Missouri ,  had  been  duly  elected,  and  were  entitled  to  their  seats;  thus  endeavor¬ 
ing  to  avoid  a  direct  declaration  against  the  constitutionality  and  validity  of  the  law  of  Congress, 
though  this  consequence  was  plainly  involved  in  such  a  conclusion.] 

Mr.  BARNARD  spoke  to  the  following  effect : 

Mr.  Speaker  :  I  must  be  allowed  to  begin  what  I  have  to  say  on  the 
business  now  before  us  with  expressing,  not  merely  my  dissent  from, 
but  my  utter  abhorrence  of,  a  spurious  and  dangerous  doctrine  which 
has  been  allowed  to  circulate  through  the  whole  of  this  debate,  without 
being  once  disputed  or  questioned  ;  I  mean  the  idea  that  it  is  within 
the  constitutional  competency  of  the  House  of  Representatives  to  pro¬ 
nounce  a  law  of  Congress  unconstitutional  and  void.  This  is  so  utterly 
repugnant  to  every  notion  which  I  entertain  of  a  government  of  laws — 
of  regular  government  of  any  kind — that  my  mind  instinctively  revolts 
at  such  a  proposition  ;  and  I  am  satisfied  that  nothing  can  account  for 
the  easy  manner  in  which  so  shocking  a  doctrine  has  obtained  free  cur¬ 
rency  in  this  House,  but  the  fact  that  the  minds  of  men  amongst  us 
have  become  familiarized,  of  late,  with  all  sorts  of  bold  and  monstrous 
speculations  in  matters  of  society,  politics,  and  government.  Nothing 
is  too  bold  for  restless  spirits  to  attempt;  nothing  is  too  absurd  for  in¬ 
genious  minds  to  advocate  and  defend.  These  things  meet  us  at  every 
turn;  and  our  sensibility  to  the  general  order,  beauty,  and  perpetuity 
of  things — always  a  more  prompt,  often  a  more  unerring  guide  than 
the  cold  reason — is  dulled  and  blunted  amid  the  multiplicity  and  con¬ 
fusion  of  high-handed  errors  with  which  the  general  ear  and  the  general 
mind  are  continually  assailed  and  abused.  How  else  it  should  happen, 
I  do  not  know,  that  this  idea  of  a  competency  in  the  House  of  Repre¬ 
sentatives,  to  annul  a  law  of  Congress,  should  have  been  received  with 


J.  &  6.  S.  Owwa,  print«CH. 


2 


acquiescence  and  favor  through  a  whole  week’s  debate,  instead  of  hav¬ 
ing  been  met  at  once  with  indignant  denial  and  rebuke. 

There  is  a  proportion  and  fitness  in  the  very  frame  of  a  great  system 
which  cannot  be  disturbed  without  hazard  of  bringing  down  the  whole 
fabric  in  ruins.  The  delicate  adjustment  of  the  several  parts,  and  the 
incorporation  of  the  whole  into  one  complete  plan,  with  strict  unity  of 
design  and  purpose  ;  all  this  deserves  to  be  well  considered  when  we 
are  about  to  lay  violent  hands  on  any  portion  of  its  organic  structure. 
If  ours  is  a  government  of  lawTs,  then  the  laws  ought  to  govern;  and  to 
my  mind  it  is  a  startling  and  a  fearful  thing,  when  it  is  pretended  to  be 
discovered  that  there  are  cases  in  which  one  branch  of  the  Government 
— not  the  judicial  branch — or  rather  one  fragment  of  a  branch  of  the 
Government,  acting,  in  this  respect,  merely  in  a  ministerial  capacity* 
has  authority  to  sit  in  judgment  on  the  validity  of  laws;  to  pronounce 
sentence  of  condemnation  on  them  ;  to  absolve  itself  from  their  obliga¬ 
tion  ;  and,  along  wTith  itself,  to  absolve  also  as  many  of  the  people  as 
may  choose  to  avail  themselves  of  this  plenary  indulgence. 

It  is  a  statute  of  this  land  that  is  proposed  to  be  dispensed  with,  set 
aside,  and  annulled  in  this  unceremonious  way;  an  enactment  made 
by  the  legislative  authority  of  the  country,  appointed  by  the  Constitu¬ 
tion  for  this  purpose,  passed  with  all  the  accustomed  forms  of  proceed¬ 
ing,  and  with  the  concurrence  of  the  several  branches  and  powers  re¬ 
quired  to  create  and  solemnize  a  statute.  And  it  is  one  of  the  branches 
only — a  fragmentary  part — of  the  legislative  power,  which,  standing 
alone,  sets  up  this  right  of  annulling  a  statute  thus  created  and  solemn¬ 
ized.  It  is  a  gross  libel  on  the  Constitution  of  the  United  States,  and 
the  memory  of  the  illustrious  men  who  framed  it,  to  suppose  that  it 
authorizes  such  a  proceeding. 

The  legislature  of  the  country  always  has  it  in  its  power  to  retrace 
its  steps,  and  to  correct  any  mistakes  into  which  it  may  have  fallen,, 
by  a  repeal  of  its  own  enactments.  But  an  act  repealing  a  statute  is 
itself  a  statute,  and  must  be  enacted  by  the  full  concurrence  of  the 
whole  legislative  authority.  Nothing  short  of  this  can  effect  a  repeal; 
no  action,  from  a  legislative  source  less  than  this,  can  shake  the  force 
and  obligation  of  a  statute.  How  can  it  be  pretended,  then,  that  one 
branch  of  the  legislature  which  cannot  repeal,  may,  nevertheless,  as¬ 
sume  a  higher  prerogative,  and  annul  a  statute  1 

But  what  is  the  ground  of  the  pretension  set  up  in  this  case  1  It  is  said 
that  the  constitutional  authority  of  Congress  to  pass  the  second  section 
of  the  apportionment  law  is  disputed ;  that  if  Congress  had  no  such. 
powTer  the  law  is  merely  void  ;  and  that  the  question  whether  it  be  a 
law  or  not,  or,  which  is  the  same  thing,  whether  Congress  had  author¬ 
ity  to  pass  it  or  not,  is  directly  involved  in  the  inquiry  in  which  the 
House  is  now  legitimately  engaged — namely,  an  inquiry  into  “the 
elections,  returns,  and  qualifications  of  its  own  members.”  Of  all  this 
matter,  it  is  said,  the  House  is  to  be  “the  judge,”  by  direct  constitutional 
appointment. 

Nothing  marks  the  character  of  an  ingenuous,  fair,  and  safe  mind 
so  strongly  as  the  fact  that  it  -  is  always  seen  to  pause,  and  resolutely 
turn  back,  when  it  is  brought,  in  the  course  of  an  argument,  to  the 
verge  of  a  great  moral  difficulty  or  evil.  This  affords  a  demonstration. 


3 


which  nothing  can  oppose,  that  the  reasoning  in  the  case  has  been 
wrong — that  a  false  step  has  been  taken  somewhere  in  the  process; 
and  this  is  not  a  whit  the  less  certain,  because  it  may  not  be  easy  or 
possible  to  detect  exactly  where  the  false  step  was  made.  Ardent, 
bold,  and  reckless  minds  are  in  no  way  affected  by  such  considerations 
as  these  :  a  plausible  argument  is  as  good  for  their  purposes  as  a  sound 
one.  If  it  will  succeed,  it  is  no  matter  how  much  it  deceives,  and  no 
matter  how  much  mischief  it  accomplishes.  The  reasoning  by  which 
it  is  concluded  that  the  House  of  Representatives  has  authority  to  annul 
a  law  of  Congress,  involves  a  moral  absurdity  and  mischief  which 
ought  to  make  every  honest  mind  renounce,  at  once  and  forever,  both 
the  conclusion  and  the  argument. 

When  it  was  found  that  the  Constitution  made  this  House  u  the  judge 
of  the  elections,  returns,  and  qualifications  of  its  own  members,”  it  was 
natural  enough,  perhaps,  to  infer  that  judicial  power  was  in  some  sense 
conferred  on  this  body;  and  from  this  assumption  it  was  an  easy  step 
to  the  conclusion,  that  this  judicial  power  involved  the  right  to  decide 
on  the  constitutional  validity  of  a  law  of  Congress  touching  the  elec¬ 
tion  of  members.  _  When,  however,  the  argument  had  reached  this 
conclusion,  and  was  found  to  involve  the  monstrous  proposition,  that 
one  branch  of  the  legislative  body,  sitting  in  that  capacity,  had  a  right 
to  review,  reverse,  and  annul  the  decision  and  acts  of  the  whole  legis¬ 
lative  body — and  that,  too,  in  a  matter  not  merely  affecting  its  own  or¬ 
ganization,  proceedings,  or  government,  but  affecting  matters  of  public 
policy,  in  which  the  rights  and  interests  of  the  whole  people  of  the 
United  States  were  vitally  concerned — when  this  was  discovered,  it  is 
difficult  to  understand  how  any  fair  mind  could  continue  to  rest  for  one 
moment  longer  on  such  a  position.  I  know  that  it  has  been  assented 
to  here  by  many,  because  they  have  not  given  the  subject  the  consider¬ 
ation  it  deserves. 

The  truth  is,  that  the  first  error  in  this  case  is  in  ascribing  to  this 
House  judicial  power.  Properly,  it  has  no  such  power;  its  authority 
is  all  the  while  legislative,  and  with  this — just  like  every  court,  as  well 
as  every  legislative  body — it  has  such  incidental  powers  as  are  neces¬ 
sary  to  enable  it  to  perform  its  proper  and  legitimate  functions.  One 
of  these  powers  relates  to  its  own  organization,  as  another  does  to  its 
own  government.  But  these  powers  are  more  ministerial  than  judicial. 
The  House  may  judge  of  the  elections  of  its  own  members;  but  in¬ 
spectors  of  elections  are  judges  of  elections  also,  and  so  are  function¬ 
aries  and  boards  of  officers  appointed  to  canvass  the  votes  and  returns, 
and  declare  the  results;  and  nobody  contends  that  these  have  any 
judicial  power.  The  only  diffeience  is,  that  the  House  is  to  judge  in 
the  last  instance,  and  that  no  appeal  can  be  taken  from  its  decision, 
except  to  the  public  voice  or  the  popular  will.  Its  decision  is  final,  for 
the  time  being;  and  I  grant  that  it  may  also  be  arbitrary — outraging  all 
law  and  order,  and  defying  all  decency — and  yet  be  without  remedy, 
except  in  the  virtue  of  an  insulted  people.  Still  (he  power  is  minis¬ 
terial  :  in  its  nature  and  essence,  it  is  just  such  a  power  as  very  inferior 
functionaries  are  often  called  on  to  perform — constables,  bailiffs,  and 
the  like,  as  well  as  executive  officers  of  high  grade  and  dignity.  They 
must  all  occasionally  judge  and  decide  on  very  important  incidental 


4 


matters,  in  the  course  of  the  execution  of  their  proper  duties.  Some¬ 
times  they  have  to  administer  oaths,  and  examine  witnesses,  and  hear 
allegations,  and  so  determine  questions;  but  in  all  this  they  are  never 
regarded  as  exercising  judicial  power — it  is  merely  ministerial.  Their 
business  is  to  execute  the  law — to  carry  the  law  into  effect,  just  as  it 
stands,  or  just  as  it  has  been  interpreted  and  declared  by  the  judicial 
power. 

And  this  is  exactly  the  nature  of  the  authority  which  this  House  has 
in  the  power  u  to  judge  of  elections. ”  It  is  to  take  the  law  as  it  finds 
it,  and  determine  who  have  been  elected  according  to  that  law.  If 
there  be  doubt  about  the  meaning  or  construction  of  a  law,  it  is  un¬ 
doubtedly  to  construe  it  for  itself,  in  the  absence  of  all  judicial  inter¬ 
pretation  ;  but  to  construe  it  only  for  the  purpose  of  executing  it — not 
certainly  for  the  purpose  of  annulling  it.  And  if  it  be  a  statute  of 
Congress  which  is  to  be  considered  and  carried  inlo  effect,  it  is  no  mat¬ 
ter  what  may  happen  to  be  the  opinion  of  a  political  majority  in  this 
House — how  united  or  unanimous — about  its  want  of  constitutional 
sanction  ;  still  the  House  cannot  refuse  to  execute  it,  without  incurring 
the  certain  guilt  of  throwing  a  well-ordered  and  regular  system  of  gov¬ 
ernment  out  of  gear,  and  exposing  it  to  confusion,  anarchy,  and  de¬ 
struction.  It  is  no  apology  to  say,  that  if  the  law  is  unconstitutional 
it  is  void,  and  ought  not  to  be  executed.  If  the  House  may  say  this, 
every  functionary  of  the  Government,  high  or  low,  having  ministerial 
duties  to  perform,  and  every  restless  and  rebellious  spirit  in  the  land, 
high  or  low,  may  say  the  same  thing,  and  act  accordingly.  And  ail 
this  would  only  be  a  practical  illustration  of  the  most  disorganizing, 
mischievous,  and  monstrous  political  heresy  ever  uttered  in  this  coun¬ 
try — the  effect  of  which  is  more  and  more  manifest  and  melancholy 
every  day — that  both  Constitution  and  laws  are  to  be  obeyed  and  exe¬ 
cuted  by  a  public  functionary  as  he  understands  them ;  and,  of  course, 
if  by  one  public  functionary,  then  by  all;  and  if  by  public  function¬ 
aries,  then  by  every  citizen.  For  such  persons  to  say  that  a  law  is  un¬ 
constitutional,  and  to  act  accordingly,  is  to  set  up  private  judgment 
against  public  authority.  Congress  judges,  in  the  first  instance,  of  the 
question  of  constitutionality  in  regard  to  every  act  which  it  passes,  and 
determines  that  question  in  favor  of  the  law.  So  far,  there  is  a  legis¬ 
lative  interpretation  of  the  Constitution.  This  is  authoritative,  and  is 
to  stand  as  the  judgment  of  the  whole  country  on  the  subject,  until 
that  interpretation  is  reversed  in  the  courts — the  only  place  known  to 
the  Constitution  where  the  question  can  be  legitimately  entertained,  or 
the  reversal  authoritatively  made.  If  functionaries,  who  are  to  carry  a 
statute  into  effect,  ministerially,  may  stop  to  question  its  validity,  may- 
try  that  question,  and  pronounce  the  statute  inoperative  and  void, 
should  their  judgment  or  caprice  lead  them  to  that  conclusion — then 
statutes  have  no  sanctions  and  no  authority;  and  whatever  else  the 
Government  may  be,  it  is  not  a  government  of  laws. 

And  this  House,  in  regard  to  statutes  touching  the  elections  of  its 
members,  and  acting  under  the  power  u  to  judge  of  the  elections, ” 
stands  exact!}'  in  the  predicament  of  any  other  functionary,  bound  by 
direct  official  obligation  to  carry  into  effect,  ministerially,  a  law  of  the 
land — except,  only,  that  in  its  violation  or  contempt  of  the  law  it  may 


5 


escape  judicial  responsibility.  Congress  passes  a  law  regulating  the 
manner  of  holding  elections  for  Representatives  in  the  several  States: 
this  law  is  to  be  carried  into  effect  first  in  the  States,  and  finally  in  this 
House  in  case  disputes  arise.  And  this  is  all  the  House  has  or  can 
have  to  do  in  the  matter.  No  Congress  could  be  formed — no  House  of 
Representatives  could  be  constituted  under  the  fundamental  law — with¬ 
out  statutory  regulations,  enacted  either  by  the  States  or  by  Congress. 
Provision  is  made  in  the  Constitution  to  this  effect:  When  Congress,  as 
the  paramount  power,  passes  a  statute  on  the  subject,  that  is  the  law 
of  the  land,  and  just  as  much  of  binding  efficacy  on  this  House  as  on 
the  people,  or  the  country  at  large.  This  House,  alone,  cannot  make 
or  unmake  a  law  regulating  the  manner  of  holding  elections.  It  may 
determine  when  elections  are  properly  made  under  the  law — just  as 
other  judges  of  elections  may  do — and  there  an  end.  Its  business  is 
to  carry  the  law  into  effect,  as  the  ministerial  agency  appointed  for 
this  purpose,  and  not  to  sit  in  judgment  on  its  constitutional  validity: 
That  question  was  determined,  so  far  as  this  House  is  concerned,  when 
the  lav  was  passed;  it  was  determined  by  the  entire  legislative  power 
of  the  ;ountry  ;'and  it  is  preposterous  to  suppose  that  the  Constitution 
should  have  intended  to  refer  that  same  question  back,  under  any  cir¬ 
cumstances,  not  to  the  whole  Legislature,  but  to  a  component  branch 
of  it.  For  this  House  to  act  on  such  a  supposition  as  it  proposes  now 
to  do — to  attempt  to  enlarge  a  mere  ministerial  agency,  provided  to  make 
sure  the  execution  of  the  law,  into  a  high  prerogative  power,  higher  in 
some  sense  than  that  of  repeal  or  of  dispensation — the  power  to  pro¬ 
nounce  judgment  of  condemnation  on  a  public  statute — to  pronounce  a 
statute  void  for  want  of  constitutional  sanction;  and  thus,  in  effect,  to 
make,  or  attempt  tomake,its  decision  a  perpetual  decree  against  any  such 
legislation  for  ever — all  this  is,  to  my  mind,  disorganizing  and  revolution¬ 
ary.  It  is  in  the  strongest  spirit  of  insubordination  and  lawlessness. 

If  this  House  has  the  power  to  decide  on  the  constitutionality  of  laws 
of  Congress — those  relating  to  elections,  or  any  other — it  must  at  least 
be  confessed  that  it  is  of  all  others  the  strangest  and  most  unnatural, 
and  unfit,  of  all  tribunals  which  could  have  been  devised  for  a  duty  so 
delicate,  so  difficult,  and  so  responsible.  The  highest  power  known  to 
our  system,  or  to  any  system,  is  the  power  to  pronounce  judicial  con¬ 
demnation  on  a  law  of  Congress  as  void  for  want  of  constitutional  sanc¬ 
tion.  It  is  this  amongst  other  things — and  this  is  not  tire  least — which 
makes  the  Supreme  Court  of  the  United  States  a  tribunal  of  higher  ju¬ 
dicial  authority  and’dignity  than  any  similar  tribunal  in  the  world.  The 
power  to  interpret  constitutions  ;  to  settle  their  construction  in  disputed 
cases;  to  declare,  to  limit,  to  confirm  their  powers — all  this  is  authority 
of  supreme  eminence  and  dignity.  It  may  be  entrusted  to  an  inde¬ 
pendent  and  permanent  Judiciary — but  not  to  a  political  changeling, 
like  the  House  of  Representatives. 

When  a  question  of  constitutional  law,  involving  the  construction  of 
a  power  in  that  instrument,  is  once  entertained,  and  deliberately  and 
finally  settled  by  the  tribunal  having  the  necessary  authority,  the 
result  and  decision  becomes  in  effect  incorporated  into  the  Consti¬ 
tution,  and  forms  a  part  of  it ;  it  is  itself  constitutional  law,  as  much 
as  any  part  of  the  text  of  the  Constitution.  It  becomes  a  part  of  the 


6 


fundamental  law,  and  is  to  be  regarded  and  obeyed  a3  such  ;  and,  like 
the  text  of  the  Constitution,  it  is  permanent  and  perpetual,  unless 
changed  by  a  formal  amendment  of  that  instrument.  The  eleventh 
article  of  the  Amendments  of  our  Constitution  was  occasioned,  as  is 
well  known,  by  a  judicial  construction  which  had  been  put  on  that  part 
of  the  instrument  which  relates  to  the  judicial  power.  Now,  let  any 
gentleman  reflect  on  the  manner  in  which  the  House  of  Representa¬ 
tives  is  composed — elected  by  the  people  every  two  years  ;  a  political 
body,  and  changing  its  political  majority  almost  as  often  as  a  new 
House  is  constituted — and  then  say,  if  he  sees  in  this  House  a  fit  or  safe 
tribunal  for  the  judicial  determination  of  questions  of  the  nature  of  those 
referred  to.  Why,  let  its  fitness  be  illustrated  and  tested  by  the  very 
case  we  have  in  hand.  Congress  has  passed  a  law  for  regulating  the 
manner  of  holding  elections  for  Representatives.  This  House  now  pro¬ 
poses  to  determine  judicially,  and  will  no  doubt  shortly  so  determine 
and  declare  in  effect,  that  that  law  is  void  for  want  of  constitutional 
authority.  For  the  case  and  the  occasion  the  Constitution  will  stand 
as  this  House  shall  pronounce  and  declare  it.  If  the  authority  really 
resides  in  this  House,  which  is  contended  for,  then,  the  decision  once 
made,  it  ought  to  be  the  same  thing,  as  long  as  it  lasts,  as  if  a  formal 
amendment  had  been  made  to  this  effect,  namely,  that  nothing  in 
the  Constitution  shall  be  held  to  authorize  Congress  to  pass  a  law 
declaring  or  requiring  that  Representatives  shall  be  elected  in  the  sev¬ 
eral  States  by  single  districts.  And  this  should  be  not  merely  the  tem¬ 
porary,  but  the  permanent  effect,  if  the  House  really  possesses  this  high 
judicial  power.  Its  decision  ought  to  be  final.  It  should  be  revered 
and  observed  as  a  part  of  the  Constitution — unchangeable,  except  by  a 
formal  amendment.  But  those  who  ascribe  this  power  to  this  House  do 
not. pretend  to  look  for  any  result,  in  this  decision,  beyond  the  tempo¬ 
rary  settlement  of  a  disputed  question  of  title  to  seats  in  the  House  for 
this  present  Congress.  They  know  very  well,  if  the  political  power  of 
this  body  shall  be  in  the  hands  of  their  opponents  in  the  next  Congress 
— as  the  chances  are  a  thousand  to  one  it  will — that  this  decision  of 
theirs  will  be  promptly  reversed,  in  case  any  individual  should  have  the 
temerity  then  to  offer  himself  as  a  Representative  elected  in  defiance  of 
the  existing  law  of  Congress.  This  they  anticipate  and  expect;  and  I 
venture  to  say  it  would  never  occur  to  one  of  them,  in  such  a  case,  to 
attempt  to  defend  on  the  ground  of  res  judicata. 

What  sort  of  a  mode,  then,  is  this,  of  establishing,  by  judicial  con¬ 
struction,  what  a  constitution  is — which  is  next  to  and  hardly  less  than 
making  or  amending  a  constitution.  The  Constitution  is  to  be  one 
thing  for  the  28th  Congress,  and  another  thing  for  the  29th  Congress; 
and  a  law  is  to  be  unconstitutional  for  the  28th  Congress,  and  perfectly 
constitutional  for  the  29th  Congress.  How  can  any  man  maintain  ahd 
uphold  a  doctrine  which  involves  consequences  and  absurdities  such  as 
these  1  This  high  power  on  the  part  of  this  House,  by  which  it  is  en¬ 
abled  to  go  behind  the  law  and  declare  what  the  Constitution  is,  and 
what  it  shall  be,  at  least  for  this  present  time,  touching  the  subject  to 
which  the  law  relates,  is  found  in  the  authority  which  declares  that  this 
House  shall  be  “  the  judge  of  the  elections,  &c.,  of  its  own  members.” 
But  does  not  every  body  see  that  the  next  House  of  Representatives  is 


r 


to  possess  precisely  the  same  authority,  unaffected  by  any  thing  which 
this  House  can  say  or  do,  to  judge  of  the  elections  of  its  members? 
u  Each  House  is  to  be  the  judge,  &c.”  The  next  House,  then,  must 
have  the  same  light  to  declare  the  law  of  Congress  constitutional,  valid, 
and  operative,  as  this  House  can  have  to  declare  it  unconstitutional  and 
void.  And  the  only  sound  and  rational  conclusion  is,  that  neither  has 
a  right  to  touch  the  question  of  constitutionality.  The  whole  duty  of 
the  House  is  to  carry  the  law  into  execution  just  as  it  stands,  as  the  min¬ 
isterial  organ  appointed  by  the  Constitution  for  this  very  purpose.  Con¬ 
gress  has  settled  the  constitutional  question  for  this  House  and  for  the 
country,  in  the  act  of  passing  the  law,  and  nothing  is  left  for  the  House 
or  the  country  to  do  but  obey  the  law,  except  to  resort  to  nullification. 
If  the  law  is  unconstitutional,  Congress  will  repeal  it  the  very  hour 
that  fact  can  be  shown;  but  it  requires  something  better  than  mere  po¬ 
litical  or  party  opinions,  having  nothing  in  truth  or  reason  to  stand  upon, 
to  show  that  the  law  is  unconstitutional. 

The  absurdity  of  this  assumed  authority,  on  the  part  of  this  House,  is 
set  in  a  strong  light,  when  it  is  considered  that  the  House,  in  this  case, 
undertakes  to  declare  the  constitutional  law  of  the  land,  not  for  its  own 
government  merely,  but  for  the  government  of  the  whole  American 
people.  It  is  difficult  to  imagine  what  subject  could  be  of  more  vital 
interest  to  the  people  of  the  United  States,  than  one  in  which  the  prin¬ 
ciple  of  representation,  the  very  soul  and  essence  of  our  system,  is  in¬ 
volved.  Elections  are  necessary  to  representation;  and  equal  and  just 
representation  can  only  be  secured  to  all  the  people  by  an  equitable  and 
just  mode  of  holding  and  conducting  the  elections.  Great  and  ac¬ 
knowledged  inequality  of  representation  was  found  to  exist  as  between 
the  different  States.  Some  elected  by  general  ticket,  others  elected  by 
districts.  This  secured  to  the  former  States  a  very  signal  and  unjust 
advantage  over  the  latter  on  the  floor  of  the  House  of  Representatives. 
A  State  electing  forty  members  by  districts  would  be  found  to  have  its 
political  strength  so  equally  divided,  that  its  power  in  the  House,  on 
the  most  important  questions,  would  be  outweighed  by  a  State  electing 
no  more  than  two  or  three  members  by  general  ticket.  The  danger  was 
that  the  large  States  would  resort  to  the  general  ticket  in  self  defence 
against  the  small  States  which  had  adopted  that  system  ;  and  then  the 
remedy  would  be  .found  worse  than  the  disease.  The  power  of  thek 
large  States  would  overwhelm  the  small,  when  all  elected  by  general 
ticket.  The  only  true  remedy  was  in  a  resort  to  the  district  system  for 
all  the  States.  Congress  believed  it  had  the  power  to  prescribe  that 
system,  under  the  plain  and  unequivocal  language  of  the  Constitution. 
The  law-making  power  made  the  law,  and  it  was  a  law  operating  upon 
and  affecting  directly  the  great  body  of  the  people  of  the  United  States 

in  a  matter  of  vital  interest  to  themselves.  Under  its  authoritv  all  elec- 
•  * 

tions  of  representatives  were  to  be  held;  it  prescribed  the  mode,  and  the 
only  mode,  in  which  the  great  principle  of  popular  representation  in 
this  Government  was  to  be  realized  and  accomplished.  And  such  a 
law  it  was,  and  is,  which  this  House  undertakes  to  annul  and  set  aside 
for  want  of  constitutional  sanction.  This  House  will  declare  this  law  to 
be  void,  either  directly  by  resolution  to  that  effect,  or  practically  by  de¬ 
claring  that  persons  chosen  by  another  mode  are  legally  elected.  Tbia 


I 


8 


House  declares  what  the  Constitution  is,  and  what  it  shall  be,  in  the 
case;  and  then  declares  what  the  existing  and  operative  law  is,  and 
that  the  existing  and  operative  law  in  the  case  is  one  which  prescribes 
a  mode  of  election  the  opposite  of  that  which  the  act  of  Congress  had 
prescribed.  Here,  then,  the  House  sets  itself  above  the  law-making 
power,  of  which  it  is  only  a  co-ordinate  branch,  and,  in  defiance  of 
what  the  law-making  power  has  prescribed  under  the  Constitution,  un¬ 
dertakes  to  declare  both  what  the  Constitution  is,  and  what  the  actual 
and  operative  law  is,  overriding  and  trampling  down  a  law  of  Congress, 
and  that  in  a  matter  most  deeply  affecting  the  rights,  duties,  and  privi¬ 
leges  of  the  whole  people  of  the  United  States:  This  House  which,  of 
itself,  can  make  no  law  to  bind  the  people  of  the  United  States  on  the 
most  unimportant  and  trifling  subject,  may,  according  to  this  doctrine, 
declare  the  law,  if  it  cannot  make  it,  on  subjects  of  the  utmost  moment, 
not  only  without  the  aid  of  the  rest  of  the  law- making  power,  but  in 
spite  of  the  whole  of  it.  Congress  has  enacted  and  declared  that  rep¬ 
resentatives  shall  be  elected  from  the  several  States  by  districts ;  this 
House  overrules  Congress,  and  declares  and  prescribes  that  the  people 
of  any  State,  who  so  choose,  shall  elect  their  representatives  by  general 
ticket ;  and  this  last  is  the  law  and  the  Constitution  in  the  case.  Mon¬ 
strous,  monstrous  conclusion! 

I  deny,  then,  utterly,  that  this  House  is  competent  to  entertain  the 
question  of  the  constitutional  authority  of  Congress  to  pass  the  Election 
law  which  it  is  now  called  on  to  enforce  and  carry  into  effect;  and  that 
the  attempt  to  set  aside  or  annul  that  law  is  disorderly,  disorganizing, 
and  revolutionary.  But,  since  the  House  is  resolved  to  accomplish  its 
unhallowed  purpose  in  this  respect,  I  (urn  to  consider,  for  a  few  mo¬ 
ments,  the  feeble  and  hollow  pretence — for  so  I  feel  constrained  to  re¬ 
gard  it,  without  permitting  myself  to  doubt  the  sincerity  of  those  who 
set  it  up — on  which  this  high-handed  measure  is  attempted  to  be  justi¬ 
fied.  The  whole  argument  for  unconstitutionality  or  invalidity  will  be 
found  to  rest  on  a  single  averment,  which,  if  admitted  to  be  true, 
proves  nothing,  except  that  it  is  as  easy  for  some  minds  to  draw  a  false 
conclusion  as  a  legitimate  one. 

But  I  must  first  be  allowed  to  state  the  general  ground  on  which  the 
validity  of  the  Election  law  rests.  The  whole  ultimate  authority  over 
the  manner  of  holding  and  conducting  the  elections  for  representatives 
rests  with  Congress.  “The  times,  places,  and  manner  of  holding  elec¬ 
tions  for  representatives  shall  be  prescribed  in  each  State  by  the  legis¬ 
lature  thereof;  but  the  Congress  may,  at  any  time,  by  law,  make  or 
alter  such  regulations.”  Such  is  the  constitutional  provision.  By 
some  mode  of  legislation  or  other,  Congress  may  control  and  direct 
whatever  relates  to  “  the  times,  places,  and  manner  of  holding  elec¬ 
tions.”  It  is  generally  admitted,  also,  though  some  have  denied  it, 
who  deny  every  thing,  that  Congress  may  prescribe  the  mode  of  elect¬ 
ing  by  districts.  This,  at  any  rate,  is  what  Congress  has  undertaken  to 
do  in  the  Election  law. 

That  law  is  in  general  terms,  and  runs  to  this  effect :  “  In  each  case 
where  a  State  is  entitled  to  more  than  one  representative,  the  number 
to  which  each  State  shall  be  entitled  shall  be  elected  by  districts  com¬ 
posed  of  contiguous  territory,  equal  in  number  to  the  number  of  repre- 


9 


Bentatives  to  which  said  State  shall  be  entitled — no  one  district  electing" 
more  than  one  representative.”  The  act  lays  down  a  rule  which  fixes 
the  mode  of  holding  elections,  and  it  purposely  leaves  to  the  State 
legislatures  the  duty  of  supplying  by  legislative  enactment,  if  not  al¬ 
ready  done,  the  particular  provisions  which  may  be  necessary  for  hold¬ 
ing  the  elections  by  this  mode. 

In  all  the  States  of  the  Union,  except  four,  the  necessary  supple¬ 
mental  legislation  is  found.  General  ticket  systems  and  double  districts 
are  given  up.  Every  member  on  this  floor,  except  from  four  States, 
has  been  elected  from  a  single  u  district  composed  of  contiguous  terri¬ 
tory.”  The  act  of  Congress,  and  the  laws  of  the  several  States  sup¬ 
plemental  thereto  or  consistent  therewith,  form,  together,  the  body  of 
legislation  under  which  this  House  is  constituted,  so  far  as  twenty-two 
States  are  concerned. 

In  some  respects  this  may  be  regarded  as  an  anomaly  in  Govern¬ 
ment — the  employment  of  two,  or,  it  may  be,  of  twenty-seven  distinct 
legislatures  to  frame  a  body  of  laws  on  a  single  subject.  A  moment’s 
consideration  will  show  us  that  the  system  is  not  only  a  reasonable  and 
practical  one,  but  that  it  is  equally  beautiful  and  harmonious.  Our  sys¬ 
tem  of  Government  may  be  complicated  to  those  who  will  not  give 
themselves  the  trouble  to  understand  it;  it  is  perfectly  simple  to  those 
who  do. 

The  people  of  the  United  States  are  all  the  subjects  of  two  Govern¬ 
ments — in  some  things  distinct  and  independent,  in  some  things  united 
and  even  blended,  and  in  all  things  designed  to  act  in  perfect  harmony. 

Sometimes  the  people  are  regarded,  in  our  system,  solely  as  citizens 
of  the  several  States,  and,  as  such,  they  are  governed  solely  by  State 
laws.  Municipal  regulations,  with  enactments  affecting  property,  per¬ 
sons,  and  crimes,  and  the  like,  belong  generally  to  the  State  gov¬ 
ernments. 

Sometimes  the  people  are  regarded,  in  our  system,  solely  as  citizens 
of  the  United  States,  as  subjects  of  this  National  Government,  and,  as 
such, — at  least  in  reference  to  many  things — they  are  governed  solely 
by  the  laws  of  the  National  Government.  In  relation  to  war,  in  rela¬ 
tion  to  commerce,  in  relation  to  coins  and  their  value,  and  the  like, 
they  are  subject  exclusively  to  the  legislation  of  Congress. 

But  there  are  matters  in  relation  to  which,  though  the  people  are  re¬ 
garded  in  this  system  solely,  or  chiefly,  as  citizens  of  the  United  States, 
and  subjects  of  the  National  Government,  as  its  constituency,  and  pro¬ 
perly  subject,  therefore,  to  the  direct  legislation,  and  certainly  to  the 
ultimate  authority  of  the  National  Government,  yet,  as  inhabitants  of 
States,  as  a  people  or  nation  grouped  in  distinct  municipal  communities, 
the  Constitution  borrows  or  allows  the  aid  of  State  or  local  legislation, 
as  better  adapted  to  details  of  measures  and  to  local  administration. 
There  are  numerous  cases  in  the  Constitution  in  which  this  concurrent 
and  mutual  legislation  has  been  or  might  be  employed;  some  of  which 
has  been  referred  to  in  the  course  of  this  debate,  though  not  precisely 
in  the  view  for  which  I  refer  to  them. 

Under  the  Constitution,  this  kind  of  concurrent  and  mutual  legisla¬ 
tion  might  be  employed  in  laying  imposts  or  duties  for  the  use  of  the 
Treasury  of  the  United  States.  The  States  may  lay  duties  or  imposts 


10 


with  the  consent  of  Congress.  Congress  might,  therefore,  authorize  the 
States  to  enact  laws  on  this  subject,  to  fill  up  all  the  particulars  and  de¬ 
tails  of  legislation,  Congress  itself  prescribing  the  general  rules  and 
regulations  under  which  the  system  of  imposts  or  duties  should  be  es¬ 
tablished  and  conducted.  This  plan  of  concurrent  and  mutual  legisla¬ 
tion  might  be  resorted  to,  for  the  supply  of  the  Treasury  of  the  United 
States,  from  duties  on  imports,  and  the  exclusive  legislation  of  Con¬ 
gress  on  the  subject  given  up,  though  it  is  not  an  experiment  very 
likely  to  be  tried. 

In  like  manner,  a  navy  and  army,  for  public  national  defence, 
might  be  established  by  concurrent  and  mutual  legislation  between 
Congress  and  the  several  States.  The  States  may  u  keep  troops  or 
ships  of  war  in  time  of  peace,”  with  the  consent  of  Congress.  If  this 
plan  were  resorted  to,  Congress  would  prescribe  the  general  regulations 
and  conditions,  and  the  States  would  fill  up  with  the  necessary  par¬ 
ticulars.  I  only  allude  to  what  might  be  done  under  the  Constitution, 
not  what  is  likely  to  occur. 

But  there  are  cases  in  which  this  plan  of  concurrent  and  mutual 
legislation  has  actually  been  employed,  and  with  complete  harmony 
and  success.  By  the  Constitution,  it  belongs  exclusively  to  Congress 
to  provide  for  organizing  the  militia,  except  only  that  the  appointment 
of  the  officers  is  reserved  to  the  States.  But  Congress  has  contented 
itself  with  prescribing  the  manner  in  which  the  militia  shall  be  organ¬ 
ized,  leaving  to  the  States  respectively  to  fill  up  the  plan,  and  perfect 
the  details.  And  the  States  have  supplied  the  necessary  details;  and 
the  militia  system  of  the  country  now  stands  upon  the  mutual  legisla¬ 
tion  of  this  Government  and  of  the  several  States. 

In  all  these  cases,  it  will  be  observed,  the  object  is  altogether  na¬ 
tional ;  national  purposes  are  all  the  while  in  view.  It  is  the  treasury 
of  the  nation  that  is  to  be  supplied  by  duties  and  imposts.  The  nation 
alone  can  go  to  war.  Insurrections  and  invasions  are  to  be  met  by  the 
National  Government.  Troops  and  ships  of  war,  and  militia,  are 
wanted  for  these  occasions.  And  it  will  also  be  observed  that,  in  all 
these  cases,  the  authority  or  right  of  the  States  to  act  at  all  in  the 
premises  is  merely  permissive.  Congress  might  perfect  its  own  system, 
leaving  nothing  for  the  States  to  do.  It  is  for  their  interest  to  have 
their  share  in  the  legislation — as  in  regard  to  the  militia;  and  their 
part  is  gladly  performed,  always  in  subjection  to  the  paramount  au¬ 
thority  of  Congress.  And  it  is  wholly  a  voluntary  service,  for  no  posi¬ 
tive  duty  in  the  case  is  enjoined  by  the  Constitution. 

There  is,  however,  another  case,  where  this  concurrent  and  mutual 
legislation  has  been  employed,  which  is  more  strikingly  analogous  to 
the  case  under  consideration.  I  refer  to  the  manner  in  which  the  time 
of  choosing  electors  of  President  is  prescribed  and  regulated.  Each 
State,  b}'  the  Constitution,  is  to  appoint  electors  in  such  manner  as  its 
legislature  shall  direct;  but  it  is  provided  that  u  Congress  may  deter¬ 
mine  the  time  of  choosing.”  In  1792,  Congress  enacted  that  each 
State  should  choose  electors  within  thirty-four  days  previous  to  the 
first  Wednesday  in  December;  and  each  State,  by  its  own  legislation, 
fixes  the  day  within  the  period  prescribed  by  Congress. 

Now  it  is  evident  to  the  commonest  understanding  that  we  haye 


/ 


11 


another  of  these  familiar  examples,  where  concurrent  and  mutual 
legislation  may  be  very  profitably  and  wisely  employed,  in  the  case 
under  debate.  The  election  to  be  provided  for  is  an  election  of  repre¬ 
sentatives  to  the  National  Government.  The  voters  are  the  constitu¬ 
ency  of  this  Government,  though  they  are  to  elect,  in  their  respective 
States,  as  inhabitants  of  States.  The  authority  to  prescribe  regulations 
for  holding  the  elections  is  delegated  to  the  States.  This  was  indis¬ 
pensable  in  the  first  instance,  else  no  elections  could  have  been  held 
for  the  first  Congress,  inasmuch  as  the  Constitution  did  not  itself  pre¬ 
scribe  the  necessary  regulations.  But  this  delegated  authority  was  to 
be  exercised  only  until  Congress  should  interpose,  except  that  so  much 
of  the  necessary  legislation  in  the  case  as  Congress  should  at  any  time 
leave  untouched  by  its  own  enactments  would  all  the  while  and  for¬ 
ever  remain  to  the  States.  All  this  seems  perfectly  plain,  not  only 
from  the  language  of  the  Constitution,  but  from  the  nature  of  the 
power,  the  object  to  be  attained,  and  the  mutual  interest  of  the  re¬ 
spective  governments  in  the  matter.  Analogy,  as  I  have  already  ex¬ 
plained,  points  out  the  course  to  be  pursued.  It  was  a  case  for  con¬ 
current  and  mutual  legislation — that  of  this  Government  being  con¬ 
trolling  and  paramount — whenever  it  became  necessary  for  Congress 
to  interpose  at  all. 

And  this  has  been  the  course  adopted.  It  became  necessary  for 
Congress  to  interpose ;  and  this  was  done  by  an  act,  which  laid  down  a 
plan  and  rule — made  a  general  regulation — in  regard  to  the  mode  in 
which  elections  for  representatives  should  be  held.  A  very  proper  oc¬ 
casion  was  seized  for  making  this  new  regulation,  the  commencement 
of  a  new  Decade  of  years  in  the  Congressional  history  of  the  country, 
under  a  new  census,  and  a  new  apportionment  of  representatives. 
And  Congress  has  begun  this  new  Decade  under  this  new  regulation 
and  mode  of  electing  representatives.  Twenty-two  States  (twenty- 
three  now  that  Georgia  has  legislated  on  the  subject)  have  the  neces¬ 
sary  supplemental  regulations.  And  the  laws  of  these  States,  with  the 
law  of  Congress,  form  together  the  body  of  legal  regulation  for  the 
election  of  representatives  contemplated  and  required  by  the  Constitu¬ 
tion  ;  and  under  this  body  of  laws  this  House  of  Representatives  is  now 
constituted. 

But  four  States  have  elected  by  general  ticket,  though  expressly 
prohibited  fiom  doing  so  by  the  law  of  Congress.  These  States,  and 
their  quasi  representatives,  (with  two  exceptions,)  and  their  political 
friends  on  this  floor,  attempt  to  justify  that  act  of  daring  nullification 
performed  in  the  States,  and  they  claim  that  this  act  shall  be  confirmed 
by  a  still  more  formal  and  more  daring  act  of  nullification  on  the  part 
of  this  House.  Let  us  consider  then,  for  a  moment,  on  what  shallow 
pretence  it  is  that  this  House  now  purposes  to  go  to  the  length  of  nul¬ 
lifying  the  law  of  Congress. 

There  is  no  question  as  to  the  right  of  Congress  to  interpose  with  its 
legislation  in  this  case  ;  the  only  question  made  is  as  to  the  mode  in 
which  it  has  chosen  to  interpose.  It  has  adopted  the  mode  of  estab¬ 
lishing  a  general  regulation,  leaving  the  States  to  supply  all  particulars 
and  details,  if  they  have  not  done  so  already. 

It  is  admitted,  in  the  report  of  the  Committee  on  Elections,  that  Com- 


12 


gress  may,  at  any  time,  make  all  the  regulations  required  or  contem¬ 
plated  by  the  Constitution,  leaving  nothing  for  the  State  legislatures  to 
do  on  the  subject.  It  is  admitted,  also,  that  Congress  may  make  com¬ 
plete  regulations  in  regard  to  any  one  branch  of  the  subject,  as  in  regard 
to  u  the  times,”  or  u  the  places,”  or  u  the  manner,”  leaving  the  State 
legislatures  to  act  independently  on  such  branch  or  branches  of  the  sub¬ 
ject  as  Congress  should  leave  untouched,  according  to  what  the  report 
calls  their  u  imperative  duty.”  So  far  the  admissions  of  the  report  go; 
but  here  it  stops  short,  and  denies  that  Congress  can  make  any  general 
regulation  in  regard  to  any  one  branch  of  the  subject,  leaving  the  State 
legislatures  to  supply  the  necessary  particulars  as  to  that  branch .  And 
now  for  the  reason,  (for  so  fanciful  and  puerile  a  theory  as  this  must 
have  some  show  of  reason  offered  to  sustain  it,)  and  the  only  reason, 
offered  by  the  Committee,  why  Congress  cann'ot  interpose  its  legislation 
by  making  a  general  regulation  on  any  one  branch  of  the  subject — the 
reason  is  this  (I  quote  from  the  report:)  u  It  is  entirely  nugatory  and 
inoperative  without  the  aid  of  State  legislation .”  It  is  added,  by  way  of 
consequence,  that,  if  it  have  any  operation  on  the  States,  it  is  coercive 
like  a  command,  and,  as  the  States  are  not  bound  to  obey,  the  act  is 
unconstitutional  and  void. 

It  must  be  confessed  that  this  is  very  strange  reasoning;  one  hardly 
knows  what  to  make  of  it,  or  how  to  treat  it.  It  is  clear  that  it  is  meant 
for  reasoning — for  reasoning  on  a  point  of  constitutional  law — and,  as  it 
is  found  in  the  report  of  a  committee  of  this  House,  I  suppose  it  must 
be  treated  gravely. 

We  say  that  here  is  a  case  for  mutual  legislation.  It  is  so  in  the  na¬ 
ture  of  the  case,  and  by  analogies  and  examples  in  operation  and  force 
from  the  first  days  of  the  republic.  Congress  is  to  do  its  part — as  much 
or  as  little  as  it  will — leaving  the  States  to  bring  in  their  contribution 
and  aid  by  all  needful  supplementary  legislation.  The  answer  which 
we  have  from  the  oracles  of  modern  political  wisdom  is,  that  all  legis¬ 
lation  by  Congress  is  utterly  void  which  requires  the  aid  of  State  legis¬ 
lation  to  make  it  operative  or  effective.  In  other  words,  there  can  be 
no  such  thing  as  mutual  legislation  between  Congress  and  the  State 
legislatures  on  any  single  independent  point  or  topic  whatever.  Well, 
this  argument — if  argument  it  maybe  called — has  the  merit  of  boldness 
at  least,  considering  how  much  legislation  of  this  sort  now  exists,  and 
how  much  more  might  exist,  under  various  provisions  of  the  Constitu¬ 
tion.  But  it  is  not  argument;  it  is  mere  naked  assertion,  without  any 
thing  in  fact  or  in  nature,  under  the  light  of  heaven,  to  stand  upon. 
What  appears  to  be  a  reason  is  only  an  averment,  and  an  averment 
over  again,  in  substance,  of  the  same  proposition  which  it  is  adduced  to 
sustain.  The  proposition  is,  (I  speak  of  the  substance  of  the  thing,) 
that  Congressional  legislation,  on  any  independent  point  or  matter,  can¬ 
not  constitutionally  be  aided  or  helped  out  by  State  legislation  to  make 
it  operative  ;  the  reason  is,  that  it  is  inoperative  without  the  aid  of  State 
legislation,  which  it  cannot  constitutionally  have. 

But  the  author  of  the  report  finds  a  case — and  he  might  have  found  a 
great  many — in  which  concurrent  and  mutual  legislation  cannot  be  re-  . 
sorted  to,  where  the  whole  legislation  on  the  whole  subject,  and  every 
part  of  it,  must  be  supplied  by  Congress.  He  refers  to  the  power  over 


X 


13 

bankruptcies  in  the  Constitution.  But  the  power  over  bankruptcies 
existed  in  the  States  originally.  It  was  a  subject  of  municipal  regula¬ 
tion — as  much  so  as  contracts  or  promissory  notes.  And  their  jurisdic¬ 
tion  was  not  taken  away  by  the  adoption  of  the  Constitution.  It  re¬ 
mained  in  full  force,  and  was  only  to  be  taken  away  by  the  actual  ex¬ 
ercise  of  the  power  on  the  part  of  the  national  legislature,  and  then 
only  to  the  extent  to  which  the  power  should  be  exercised  and  contin¬ 
ued  by  Congress. 

The  State  laws  on  this  subject  operate,  of  course,  only  on  the  people 
of  the  States  respectively,  the  laws  of  each  on  the  people  of  each,  as 
the  subjects  of  one,  and  only  one,  local  and  independent  government. 
When  Congress  legislates  on  the  subject  the  case  is  changed.  Then 
the  people  of  all  the  States  are  regarded  as  one  people — the  subjects  of 
one  common  government — and  as  if  there  was  no  such  thing  as  a  sepa¬ 
ration  of  the  people  into  distinct  communities  or  States.  The  laws  on 
the  subject  are  required  by  the  Constitution  to  be  uniform — not  merely 
that  they  shall  operate  in  a  uniform  way  on  the  people  of  the  several 
States,  but  that  the  laws  themselves  shall  be  uniform,  operating  as  if 
there  were  no  States,  no  confederacy,  no  union,  but  one  people,  form¬ 
ing  one  municipality,  and  governed  by  one  law.  And  hence  it  is  that 
there  can  be  no  joint  legislation  by  Congress  and  the  States  for  one  and 
the  same  class  of  cases  in  bankruptcy. 

When  Congress  takes  cognizance  of  cases  in  bankruptcy,  it  must  do 
so,  regarding  the  persons  on  whom  its  laws  operate  solely  as  citizens  of 
the  United  States,  and  wholly  independent  of  the  fact  that  the  people 
are  grouped  in  distinct  municipal  communities — its  laws  must  be  uniform . 
And  this  is  not,  therefore,  a  case  in  which  it  can  borrow  the  aid  of  State  le¬ 
gislation  to  supply  the  details  of  the  system.  All  the  laws  must  be 
uniform — every  particular  provision,  as  well  as  every  general  regula¬ 
tion — and  must  operate  upon  all.  And,  as  one  State  cannot  legislate 
for  another,  or  for  the  people  of  another,  the  whole  legislation  must  ne¬ 
cessarily  be  supplied  by  Congress. 

And  this  is  the  case,  and  the  only  case  worth  a  momentVnotice,  on 
which  the  author  of  the  report  lelies  to  show  that  there  can  be  no  such 
thing,  in  any  case,  as  joint  and  mutual  legislation  by  Congress  and  the 
States.  He  might  as  well  have  adduced  the  war  power  in  the  Consti¬ 
tution,  or  the  commercial  power,  or  anysimilar  power  belonging  exclu¬ 
sively  to  this  government  as  a  national  Government,  to  show  the  same 
thing,  and  they  would  have  shown  it  just  as  conclusively. 

But  the  question  returns :  Why  may  not  Congress  in  this  case — in 
regard  to  elections  of  Representatives  from  the  several  States — inter¬ 
pose  in  the  way  of  a  general  regulation,  touching  the  mode  of  holding 
the  elections,  and  leave  the  States  to  follow  and  fill  up  the  plan  1  The 
answer  offered  is:  Because  this  way  of  legislating  does  require  the  aid 
of  State  legislation;  and  because  it  requires  the  aid  of  State  legislation 
to  make  the  system  complete,  it  is  inoperative,  and  therefore  void.  Con¬ 
gress  has  not  the  constitutional  power  to  make  such  a  law.  Let  u« 
see  now  where  this  sort  of  reasoning  will  land  us. 

In  the  first  place,  it  is  admitted  that  if  Congress  had,  at  the  time  of 
passing  the  Election  law,  supplied  the  necessary  particular  provisions, 
it  would  not  then  have  been  unconstitutional  or  void  ;  nor  would  it  be. 


14 


if  this  present,  or  any  future  Congress,  should  supply  these  provisions; 
nor  if  the  States,  respectively,  shall  supply  these  provisions — lor  it  is 
admitted  that  the  States  may  voluntarily,  or  as  an  act  of  grace,  legis¬ 
late  on  the  subject,  though  they  cannot  be  commanded  or  required  to 
do  so.  It  is  now  actually  in  force  in  twenty-two  States,  insomuch,  that 
whether  their  legislation  preceded  or  has  followed  that  of  Congress,  and 
whether  voluntary  or  by  reluctant  compliance,  the  system  is  established 
and  in  operation,  and  none  of  these  States  which  now  elect  by  dis¬ 
tricts  could  re-establish  or  return  to  the  General  Ticket  system  so  long 
as  this  Election  law  of  Congress  stands.  All  that  is  contended  for  is 
merely  this  :  that  the  States  which  have  not  supplied  the  necessary 
provisions  to  give  the  law  effect  in  those  States,  need  not  do  it,  and  it 
is  therefore  void  as  to  them.  And  what  is  the  consequence  of  all  this  l 
Why,  first:  That  this  law  is  absolutely  void  to-day  for  wTant  of  the 
necessary  constitutional  authority  in  Congress  when  it  was  passed, 
which  yet  may  be  made  perfectly  constitutional  and  valid  to-morrow, 
or  next  year,  by  further  legislation,  either  by  Congress  or  the  States, 
which  shall  have  no  other  object  or  operation  but  to  make  this  very 
law — that  is,  a  void  and  unconstitutional  law — operative  and  effective  ! 
And  next:  That  this  same  law,  which  is  general  in  its  scope  and  de¬ 
sign,  is  unconstitutional  and  void  in  some  States,  while  it  is  perfectly 
constitutional  and  valid  in  other  States!  It  is  actually  the  law  of  the 
land  in  New  York  and  twenty-one  other  States,  from  which  there  can 
be  no  escape  but  by  its  repeal,  while  it  is  no  law  at  all  in  New  Hamp¬ 
shire  and  three  other  States ! 

And,  again  :  It  is  admitted  that  Congress  may  fix  the  times,  or  the 
places,  or  the  manner  of  holding  elections,  and  that  the  States  would 
be  bound  by  an  “  imperative  duty”  to  supply  the  regulations  for  such 
branch  or  branches  of  the  subject  as  Congress  should  leave  untouched. 
But  it  is  perfectly  manifest  that  in  many  cases  such  a  law  of  Congress 
would  be  u  inoperative  without  the  aid  of  State  legislation” — which  is 
the  very  objection,  and  the  only  objection,  urged  against  the  present  law. 

Thus :  Suppose  a  uniform  day  of  holding  elections  for  Representa¬ 
tives  had  been  fixed  by  the  first  Congress,  before  Rhode  Island  came 
into  the  Union,  and  of  course  before  she  had  any  laws  whatever  on  the 
subject  of  the  election.  In  that  State  the  law  would  have  been  inope¬ 
rative  without  the  aid  of  State  legislation.  No  election  for  Representa¬ 
tives  could  have  been  held  in  that  State,  without  State  legislation  fix¬ 
ing  and  regulating  the  places  and  the  manner.  Such  a  law  would  have 
been  good  and  valid  in  all  the  other  States — does  the  author  of  this 
Report  mean  to  say  it  would  have  been  void  in  Rhode  Island  ?  If  such 
a  law  were  now  to  be  passed,  it  would  be  a  good  law  in  all  the  States 
now  in  the  Union,  but  in  regard  to  any  new  State  hereafter  admitted, 
it  would  be  nugatory  without  the  aid  of  the  legislation  of  such  new 
State — would  it  be  void  in  the  new  State  ?  So,  too,  if  Congress  should 
fix  a  uniform  day  for  the  elections,  and  that  day  should  happen  to  be 
the  first  of  March,  Pennsylvania  could  not  proceed  to  the  election  with¬ 
out  the  aid  of  State  legislation.  Her  elections  are  conducted  under  in- 
■pectors  elected  by  the  people,  and  I  understand  they  are  now  elected, 
by  law,  somewhere  about  the  middle  of  March.  But  this  law  of  Con¬ 
gress  would  be  valid  enough  in  other  States — would  it  be  void  in  Penn- 


V 


15 


sylvania  ?  Examples  of  this  sort  might  be  multiplied,  but  it  is  useless. 

The  truth  is,  that  the  notion  which  pervades  the  report  of  the  commit¬ 
tee,  and  which  has  been  so  much  dwelt  upon  in  the  whole  debate — that 
any  general  regulation  in  regard  to  the  election  of  representatives  is 
unconstitutional  and  void,  unless  the  people  can  proceed  to  an  election 
under  it  without  the  aid  of  additional  legislation,  is  merely  absurd;  it 
has  not  one  inch  of  ground  to  stand  on.  The  single  example  found  in 
the  law  concerning  the  time  of  choosing  the  electors  of  President,  and 
which  has  stood  on  record  for  more  than  half  a  centuiy,  ought  to  have 
been  enough  to  shame  such  a  doctrine  into  silence.  Congress  fixed  a 
a  period  within  which  the  choice  should  be  made.  No  election  could 
take  place  in  any  State  without  the  aid  of  its  own  legislation,  fixing  the 
day ;  and  nobody  has  yet  been  found  to  suggest  that  that  law  wanted 
constitutional  soundness  and  validity. 

In  all  these  cases  where  a  body  of  law  touching  any  subject  may  con¬ 
sist,  under  our  admirable  system,  of  concurrent  and  mutual  State  and 
National  legislation,  the  usual  and  the  only  fit  and  proper  mode  is  for 
Congress  to  prescribe  the  genera]  plan  and  regulations,  and  for  the 
States  to  supply  the  particular  provisions.  It  is  a  point  of  supreme  ex¬ 
cellence  in  our  system  that  this  course  can  be  adopted.  It  is  for  the 
mutual  advantage  of  all  parties  concerned.  It  renders  our  republican 
and  representative  system  more  practical  and  more  perfect  than  it  could 
otherwise  be.  It  popularizes  legislation  in  these  cases  beyond  what 
would  be  possible  without  it. 

And,  in  the  case  before  us,  Mr.  Madison  laid  down  this  very  rule  as 
the  proper  one  to  be  observed.  Speaking  in  the  Convention  of  Vir¬ 
ginia,  which  adopted  and  ratified  the  Constitution,  of  the  intention  of 
those  who  framed  and  adopted  the  clause  relating  to  the  times,  places, 
and  manner  of  holding  elections  for  representatives,  and  of  the  proper 
distribution  of  legislation  in  the  case  between  the  State  legislatures  and 
Congress,  he  said  :  u  It  was  thought  that  the  particular  regulations 
should  be  submitted  to  the  former,  (the  State  legislatures,)  and  the 
general  regulations  to  the  latter,”  (to  Congress.)  This  is  the  golden 
rule  which  has  been  followed  in  this  case.  Congress  has  performed  its 
part.  It  is  left  to  the  State  legislatures  to  supply  the  particular  regu¬ 
lations,  because  this  can  be  done  more  appropriately  and  more  satis¬ 
factorily  to  the  people  by  them.  It  is,  besides,  their  business,  and  the 
business  of  their  people.  The  people  of  the  several  States  have  a  right 
to  be  represented  on  this  floor,  by  elections  conducted  according  to  the 
mode  prescribed  by  Congress,  and  not  otherwise.  And  they  have  a 
right  to  all  the  legislation  necessary  and  proper  to  enable  them  to  make 
such  elections.  It  is  the  “  imperative  duty”  of  their  own  State  legisla¬ 
tures  to  supply  this  legislation,  and  it  is  their  own  fault  if  they  allow 
themselves  to  be  cheated  out  of  their  right  for  want  of  it. 

I  do  not  think  the  history  of  Governments  could  show  a  more  inex¬ 
cusable  and  wanton  resistance  to  law  than  is  here  exhibited.  The  law 
is  in  every  respect  reasonable  in  itself,  and  is  justified  by  abundant 
precedent.  Congress  could  not  have  undertaken  to  cut  up  the  States 
into  election  districts  without  incurring  odium,  if  not  resistance.  State 
rights  were  carefully  considered  and  respected,  both  in  the  system  and 
in  the  mode  of  establishing  it.  The  system  itself  brings  the  represen- 


16 


tatives  nigher  the  people  than  any  other  mode  could  do  it;  and  the 
formation  of  the  districts  is  left  to  themselves  and  their  own  neighbors 
and  friends  representing  them  in  their  local  legislatures.  In  the  name 
of  our  common  country,  in  the  name  of  God,  what  do  the  people  of 
these  recusant  States  want?  And  what  do  the  members  of  this  House 
want,  who  sustain  this  shameful  proceeding  ?  Here  is  the  so-called 
Democratic  part)",  as  represented  in  this  House,  breaking  out  in  open 
hostility  and  resistance  to  a  law  which  is  more  entirely  democratic  in 
all  its  features  and  concomitants  than  any  law  which  Congress  has 
passed  for  years  and  years  together — a  law  which  has  been  acquiesced 
in,  and  has  met  the  sanction,  now,  of  all  but  three  States  in  the  Union, 
prescribing  a  system  which  is  the  choice  of  more  than  eight-  tenths  of 
the  people  of  the  United  States.  It  is  difficult  to  account  for  such  in¬ 
fatuation  and  folly.  And  the  dominant  party  in  this  House,  too,  which 
might  have  spared,  without  weakening  it,  twice  the  number  of  mem¬ 
bers  which  a  rigid  adherence  to  the  law  of  Congress  would  have  cut 
off,  consents  to  lend  itself  to  this  proceeding,  urged  by  no  necessity, 
impelled  by  no  just  motive,  that  I  can  learn  from  any  public  avowal, 
and  justified  by  no  reason  or  apology  which  does  not  vanish  and  melt 
away  before  the  first  steady  gaze  of  sense  and  reason.  The  party  feels 
power,  and  must  employ  it ;  I  know  of  no  other  explanation  of  its 
course  and  conduct. 

And  in  this  proceeding  it  would  seem  as  if  every  thing  that  is  majes¬ 
tic  in  constitutional  forms,  as  well  as  every  thing  that  is  sacred  in  law, 
order,  and  government,  was  to  be  profaned  and  trampled  under  foot.  It 
begins  with  a  gross  act  of  practical  nullification  in  several  States.  A 
law  of  Congress  is  openly  set  at  defiance  on  the  private  and  irrespon¬ 
sible  opinion  of  individuals,  or  of  a  party,  that  the  law  is  unconstitu¬ 
tional;  and  elections  to  Congress  take  place  in  violation  and  repudiation 
of  the  law.  This  House  then  takes  up  the  proceeding.  To  give  itself  juris¬ 
diction  of  the  question,  it  sets  itself  above  Congress,  and  claims  the  right  to 
pronounce  sentence  of  judicial  condemnation  on  its  acts.  From  a  min¬ 
isterial  agent,  appointed  by  the  Constitution  to  give  a  law  of  Congress 
effect,  it  erects  itself  into  a  high  Judiciary,  and  sits  in  solemn  judg¬ 
ment  over  the  law  and  the  legislative  power  which  enacted  it.  It  is 
now  about  10  pronounce  its  decree.  It  is  about  to  do  that  which  the 
Supreme  Court  of  the  United  States,  with  its  high  and  lofty  attributes 
of  personal  and  official  character,  pure,  elevated,  and  independent,  has 
never  yet  done — pronounce  a  law  of  Congress  unconstitutional  and 
void!  And  all  for  what?  Why,  for  nothing — u  for  Hecuba. Power 
— Power  !  The  party  feels  power,  and  must  use  it.  It  cannot  employ 
it  to  build  up ;  it  will  employ  it  to  pull  down.  It  is  the  blind  giant 
embracing  the  pillars  of  the  Constitution,  and,  as  his  last  act,  bowing 
with  all  his  might  to  bury  himself,  and  all  about  him  in  one  common 
ruin.  Nullification  here  puts  on  a  new  phase.  Once  it  was  grave, 
solemn,  sincere,  earnest — acting  from  deep  though  mistaken  convic¬ 
tions.  Here  it  is  flippant,  sportive,  wanton,  and  cruel,  complaining  of 
no  oppression  and  no  injustice,  having  no  injuries  to  redress,  and  pro¬ 
ceeding  to  its  work  as  if  it  were  the  agent  of  the  furies,  fated  to  accom¬ 
plish  a  certain  amount  of  mischief  and  destruction.  But  I  take  leave 
of  the  subject. 


